The Role of Norms in Our Constitutional Order

THE ROLE OF NORMS IN OUR CONSTITUTIONAL ORDER

KEITH WHITTINGTON*

We have given more attention to the issue of norms recently1— maybe specifically during this administration—than we have pre- viously. But I think it is high time that we pay attention to norms. They are an essential part of how our constitutional system works in general, but they tend to be under-analyzed. We do not pay as much attention to them as we should, nor do we have good tools for thinking about them. Moreover, I do not believe we even have very good tools for identifying them. So this is a useful moment for us to try to grapple with the fact that the Constitution vests a great deal of discretion in government officials of all sorts,2 and that norms are part of the process—part of the sub-constitutional sets of practices and rules—by which we

* William Nelson Cromwell Professor of Politics, Princeton University. This Essay is a lightly edited version of Professor Whittington’s remarks on March 14, 2020 at the Federalist Society’s Panel, “Do Changing Norms Undermine Support for Our System of Government?” in dialogue with comments by Judge Chad A. Readler, Deans Vikram D. Amar and Evan H. Caminker, and Professor David E. Bernstein. 1. See, e.g., Dawn Johnsen, Toward Restoring Rule-of-Law Norms, 97 TEX. L. REV. 1205, 1205 (2019) (noting that the article is part of a symposium “that addresses the pressing need for ‘Reclaiming—and Restoring—Constitutional Norms.’”). 2. For example, the Take Care Clause requires the President to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3, cl. 4. In turn, some of this discretion is exercised by those working under the President. See generally TODD GARVEY, CONG. RSCH. SERV., R43708, THE TAKE CARE CLAUSE AND EXECUTIVE DISCRETION IN THE EN- FORCEMENT OF LAW (2014) (surveying the power of the President and “those under his supervision” under the Take Care Clause). 18 Harvard Journal of Law & Public Policy [Vol. 44

make the constitutional system operate effectively, despite the fact that it entrusts vast discretion to government officials. The phrase “norms” encompasses a great deal of different kinds of activities that qualify as part of these sub-constitutional sets of practices. We might think of some norms as being purely a matter of informal practice, but we might imagine others that get institu- tionalized to some degree. For example, we might imagine some rules about professional practice, like the Senate filibuster or how the House committee system works, as being similar to a norm, even though they are in fact entrenched in a set of rules. They are part of the sub-constitutional set of practices that regulate how government officials conduct business within the terms of the Consti- tution, and we think they serve very important functions and do important work within the constitutional system. Some of them may be built into statutes, and so there is a host of framework statutes that are particularly important to how the government oper- ates more generally. And these rules might serve those similar functions of norms as well. One of the challenges, though, particularly when we consider informal norms—those that are not built into some kind of regularized sets of rules or practices—is recognizing what they are so that we know when a norm violation has occurred and whether or not we ought to be concerned about it. At the very least, norms are part of a regularized set of behavior, and so an outside observer watch- ing a political system may be able to infer that there is a norm based on how people are behaving. But identifying a routine practice, by itself, probably is not suffi- cient to identify a norm. For example, it has become the regular practice of recent Presidents to only nominate people to the U.S. Supreme Court who have some prior judicial experience before that nomination is made, largely people who have gone to Harvard and